Posted by Orin Kerr:
Germany, the Death Penalty, and the U.S. Constitution:
http://volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117919854
Charles Lane has an interesting piece in today's [1]Washington Post
about the history of the death penalty in Germany. According to Lane,
the German law abolishing the death penalty in 1949 was passed at a
time when 77% of German citizens (according to one poll) were in favor
of the death penalty for ordinary crimes. The law passed not out of a
conviction that the death penalty was inhumane, but rather as an
effort to prevent the execution of Nazi leaders by the American and
British postwar authorities. According to Lane:
[The 1949 law] was in fact the brainchild of a right-wing
politician who sympathized with convicted Nazi war criminals -- and
sought to prevent their execution by British and American
occupation authorities. Far from intending to repudiate the
barbarism of Hitler, the author of [the German anti-death penalty
law] wanted to make a statement about the supposed excesses of
Allied victors' justice.
Lane's piece is a bit odd in that it overlooks public opinion in
Germany today, which I understand is in fact strongly opposed to
capital punishment. So path-dependency problems aside, it seems highly
likely that German law would have abolished the death penalty
eventually even if it hadn't done so in 1949.
Still, I think Lane's story raises some interesting questions for
those who believe that foreign law and practice is relevant to the
proper interpretation of the United States Constitution. As far as I
know -- and please correct me if I'm wrong -- those in favor of
considering foreign law and practice generally do not advocate looking
at the reason or circumstance of the forces that led to the foreign
law's adoption. What matters is that the law is on the books, not how
or why it got there. If I'm right about that, does that mean that the
efforts by pro-Nazi sympathizers in Germany to stop U.S. authorities
from executing Nazi war criminals could in theory shape the meaning of
the U.S. Constitution?
It's an interesting question, I think, because my sense is that
proponents of citing or relying on foreign law in U.S. constitutional
decisionmaking usually assume that foreign law reflects a resolution
of the same issues the Supreme Court is confronting. Foreign law is a
relevant testing ground because the issues and tensions are assumed to
be similar. But what if foreign law is passed for a quite different
reason, such as seems to be the case with Germany and the death
penalty? Is it equally relevant? Less relevant? Is the U.S. Supreme
Court supposed to look to the history of each country's law and
determine whether it was enacted for reasons similar to those explored
in the constitutional arguments before the Court before considering it
as relevant or even just citing it? Or is the Court supposed to look
not to why the law was passed, but rather to recent opinion polls in
those foreign countries that might suggest why people in those foreign
countries still support the law, or even if they do?
I'd be very interested to hear from proponents of citing or relying
on foreign law about the answers to these questions. I have enabled
comments. As always, civil and respectful comments only.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2005/06/03/AR2005060301450.html
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